When Should You Re-Write Your Will?

By Staff Writer

If you are contemplating, or in the process of, divorcing your spouse, it is crucial that you either revise your existing will, or have your attorney prepare a new one for you.

If you already have a will, it is likely that you left all, or a substantial portion, of your property to your spouse. If you do not do anything to change your Will while you are going through your Divorce or Separation process, your Will will continue to govern how your estate is settled in the event of your death. Some clients have substantial financial holdings that include real estate, life insurance, brokerage accounts, pension funds, cash, and so forth. They never intended that all of their property would go to their spouse if they died during the Separation or Divorce process and they would be shocked to know that that could occur. In fact, the overwhelming majority of  clients ask about changing their Wills only after they have become Divorced or signed a Separation Agreement.

Legally if you die before completing a Separation Agreement or obtaining a Judgment of Divorce and you have a will leaving all or some of your assets to your spouse, your spouse will inherit everything that they are supposed to get under that Will. Even if you have already started a trial to decide your Divorce issues, the Will will control how the property is divided.

A fully executed Separation Agreement usually terminates estate rights. However, a Separation Agreement is only effective once it is signed. If the Agreement has been fully negotiated and is ready to sign when one of the parties dies, the Agreement will have no effect. The estate will be administered as if the parties had never even negotiated an Agreement.

If the Will had been changed before the Separation or Divorce process had been started, the end result would be different. If you change your will during the Separation or Divorce process, those changes will dictate what your spouse inherits in the event of your death. If you would like to change what your spouse inherits if you die, then you must change your will. If you have commenced a Divorce or Separation Action, or are contemplating doing so, for your own protection, you must meet with a lawyer to revise your existing Will or draft a new one for you.